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Before the
Federal Communications Commission
Washington, D.C. 20554
In the Matter of )
) File No.: EB-98-HU-147
Leonard D. Martin )
) NAL/Acct. No.: X3254-003
Houston, TX )
FORFEITURE ORDER
Adopted: July 11, 2000 Released: July 12, 2000
By the Chief, Enforcement Bureau:
I. INTRODUCTION
1. In this Forfeiture Order (``Order''), we set aside the
previously issued Forfeiture Order in this matter,1 and we issue
a monetary forfeiture in the amount of four thousand dollars
($4,000) against Leonard D. Martin for willfully and repeatedly
violating Sections 301 and 303(n) of the Communications Act of
1934, as amended (``the Act''). 2 The noted violations involve
Mr. Martin's operation of a two-way radio station without
Commission authorization and his refusal to allow inspections of
his radio installation.
2. On March 3, 2000, the Houston Resident Agent Office
(``Houston Office'') issued a Notice of Apparent Liability for
Forfeiture (``NAL'') in the amount of seventeen thousand dollars
($17,000) to Mr. Martin for the referenced violations.3 On June
26, 2000, the Enforcement Bureau (``Bureau'') adopted a
Forfeiture Order assessing a forfeiture of $17,000 against Mr.
Martin based, in part, on Mr. Martin's failure to file a response
to the NAL. Unbeknownst to the Bureau, Mr. Martin had, in fact,
filed a response to the NAL with the Commission on April 6, 2000.
However, Mr. Martin's response was misrouted and the Bureau did
not become aware of it until June 27, 2000. Because Mr. Martin
actually did respond to the NAL, we will set aside the Forfeiture
Order adopted on June 26, 2000, pursuant to Section 1.113(b) of
the Commission's Rules (``Rules''),4 and consider his response to
the NAL in this Order.
II. BACKGROUND
3. Mr. Martin is the former licensee of amateur station
KC5WHN. By letter of November 3, 1998, the Commission notified
Mr. Martin of complaints concerning a station identifying as
KC5WHN. The complaints asserted that the station identifying as
KC5WHN was operating on frequencies which were not authorized for
that station. In his telephone response to that letter, Mr.
Martin denied the alleged unauthorized operation.
4. On February 27, 1999, an agent from the Houston Office,
using a mobile automatic direction finding (``MADF'') vehicle,
observed voice radio transmissions on frequencies 27.535 and
27.545 MHz. Frequency 27.535 MHz is allocated exclusively to
Industrial radio stations. Frequency 27.545 MHz is allocated
exclusively to United States Government radio stations. The
transmissions were unidentified, but the operator responded to
the name ``Leonard.'' Using the MADF vehicle, the agent
determined that the source of the transmissions was an antenna
mounted on the residence at 4415 Spellman, Houston, Texas, which
was then the address of record for Mr. Martin's amateur service
license. There was no record of a Commission authorization
permitting Mr. Martin to operate on 27.535 MHz or 27.545 MHz.
5. On March 15, 1999, an agent from the Houston Office,
using a MADF vehicle, observed voice radio transmissions on
27.370 MHz, a frequency allocated as a ``guard'' frequency
between authorized channels in the Citizens Band Radio Service.
The operator identified himself as ``Leonard.'' Using the MADF
vehicle, the agent determined that the source of the
transmissions was a vertical antenna mounted on the residence at
4415 Spellman, Houston, Texas. Immediately after his monitoring
observations, the agent knocked on the door of the residence.
Mr. Martin answered the door and refused the agent's request to
inspect the radio station located in the residence. The agent
informed Mr. Martin that his previously observed operation on
27.535 and 27.545 MHz was unlicensed and in violation of Section
301 of the Act because Mr. Martin held no Commission
authorization to operate on those frequencies. The agent also
informed Mr. Martin that his refusal to allow an inspection
constituted violation of Section 303(n) of the Act.
6. On April 2, 1999, the Houston Office issued Mr. Martin
an Official Notice of Violation (``NOV'') for violations of
Sections 301 and 303(n) of the Act. In Mr. Martin's April 7,
1999, response to the NOV, he stated: ``I now fully understand
that operation on the frequencies outlined is a violation ...
that the FCC has the authority to inspect all radio
installations... [and] ... I promise no further action by the
Commission will be necessary to insure my complete compliance
with the FCC Rules....''
7. On July 22, 1999, Mr. Martin submitted his amateur
service license for KC5WHN to the Commission for cancellation.
By letter of July 23, 1999, the Commission acknowledged receipt
of the license, and confirmed that it was cancelled effective
July 23, 1999. The letter also warned Mr. Martin that any
unlicensed radio operation would constitute violation of Section
301 of the Act.
8. On October 19, 1999, an agent from the Houston Office
investigated an interference complaint against Mr. Martin. The
agent, using a MADF vehicle, observed voice radio transmissions
on frequency 27.535 MHz, and determined that the source of those
transmissions was a vertical antenna mounted on Mr. Martin's
residence, at 4415 Spellman, Houston, Texas. This frequency is
allocated exclusively to licensed Industrial radio stations.
There was no record of a Commission authorization permitting Mr.
Martin to operate on 27.535 MHz.
9. On October 26, 1999, an agent from the Houston Office,
using a MADF vehicle, observed voice radio transmissions on
27.455 MHz, a frequency allocated exclusively to Industrial radio
stations. Using the MADF vehicle, the agent determined that the
source of those transmissions was a vertical antenna mounted on
Mr. Martin's residence, at 4415 Spellman, Houston, Texas. There
was no record of a Commission authorization permitting Mr. Martin
to operate on 27.455 MHz. Immediately after the monitoring, the
agent knocked on the door of the residence and requested
permission to inspect the station located there. Mr. Martin, who
answered the door, refused to allow an inspection.
10. Based on the above, on March 3, 2000, the Houston
Office issued a NAL in the amount of seventeen thousand dollars
($17,000) to Mr. Martin for violations of Sections 301 and 303(n)
of the Act.
11. In his response to the NAL, Mr. Martin does not deny
that he committed the referenced violations. Iinstead, he
requests cancellation of the forfeiture proposed by the NAL. Mr.
Martin contends that he is unable pay a $17,000 forfeiture. As
support for this claim, he submits copies of his 1996, 1997, and
1998 federal income tax returns. In addition, Mr. Martin states
that he is ``prepared to take all steps in good faith to insure
further actions by the Commission . . . will not be necessary.''
Specifically, Mr. Martin states that he agrees to: permanently
dismantle and sell or donate all of his radio transmitting
equipment and antenna and provide proof of such to the
Commission; forfeit all proceeds of such sales to the Commission
or to a charitable organization of his choice, as determined most
appropriate by the Commission; and permit an authorized
Commission agent to inspect his residence to ensure all equipment
has been removed.
III. DISCUSSION
12. As the NAL explicitly states, the forfeiture amount in
this case was assessed in accordance with Section 503 of the
Act,5 Section 1.80 of the Rules,6 and The Commission's Forfeiture
Policy Statement and Amendment of Section 1.80 of the Rules to
Incorporate the Forfeiture Guidelines, 12 FCC Rcd 17087 (1997),
recon. denied, 15 FCC Rcd 303 (1999) (``Policy Statement'').
Section 503(b) of the Act requires that, in examining Mr.
Martin's response, the Commission take into account the nature,
circumstances, extent and gravity of the violation and, with
respect to the violator, the degree of culpability, any history
of prior offenses, ability to pay, and other such matters as
justice may require.7
13. Section 301 of the Act prohibits radio operation
``except under and in accordance with this Act and with a license
in that behalf granted under the provisions of this Act.''
Section 303(n) of the Act authorizes the Commission ``to inspect
all radio installations required to be licensed . . .''
14. Mr. Martin does not deny the violations alleged in the
NAL. In view of the facts set forth above, we conclude that Mr.
Martin operated without authorization on frequencies 27.535 and
27.545 MHz on February 27, 1999, 27.535 MHz on October 19, 1999,
and 27.455 MHz on October 26, 1999, in willful and repeated
violation of Section 301 of the Act. Additionally, we find that,
on March 15 and October 26, 1999, Mr. Martin refused to make his
radio installation available for inspection, in willful and
repeated violation of Section 303(n) of the Act.
15. In view of his past history, we can not rely on Mr.
Martin's promises of remedial action. Mr. Martin's most recent
violations occurred despite three written warnings and at least
one verbal warning from the Commission, and despite Mr. Martin's
promise, in his response to the NOV, that he would comply with
the Commission's Rules.8 In any event, as the Commission has
stated previously, subsequent remedial action will not nullify a
forfeiture penalty. See KGVH, Inc., 42 FCC 2d 258, 259 (1973).
16. We have examined Mr. Martin's response to the NAL in
light of the above statutory factors and the factors set forth
in the Policy Statement. Taking all of these factors into
account, including Mr. Martin's limited ability to pay the full
amount as demonstrated in his returns, the serious nature of his
violations and the continuation of his violations after warnings
and promises of compliance, we conclude that cancellation of the
proposed forfeiture is not justified and that the proper
forfeiture amount is $4,000.
IV. ORDERING CLAUSES
17. ACCORDINGLY, IT IS ORDERED that, pursuant to Section
1.113(b) of the Rules, the Forfeiture Order (DA 00-1428) released
June 26, 2000, IS SET ASIDE.
18. IT IS FURTHER ORDERED that, pursuant to Section 503(b)
of the Act, and Sections 0.111, 0.311 and 1.80(f)(4) of the
Rules,9 Leonard D. Martin, IS LIABLE FOR A MONETARY FORFEITURE in
the amount of $4,000 for willful and repeated violation of the
provisions of Sections 301 and 303(n) of the Act.
19. Payment of the forfeiture shall be made in the manner
provided for in Section 1.80 of the Rules within 30 days of the
release of this Order. If the forfeiture is not paid within the
period specified, the case may be referred to the Department of
Justice for collection pursuant to Section 504(a) of the Act.10
Payment may be made by credit card through the Commission's
Credit and Debt Management Center at (202) 418-1995 or by mailing
a check or similar instrument, payable to the order of the
``Federal Communications Commission,'' to the Federal
Communications Commission, P.O. Box 73482, Chicago, Illinois
60673-7482. The payment should note ``NAL/Acct. No. X3254-003''
referenced above. Requests for full payment under an installment
plan should be sent to: Chief, Credit and Debt Management Center,
445 12th Street, S.W., Washington, D.C. 20554.11
20. IT IS FURTHER ORDERED that a copy of this Order shall
be sent by Certified Mail -- Return Receipt Requested, to Mr.
Leonard D. Martin at 4415 Spellman, Houston, Texas 77035.
FEDERAL COMMUNICATIONS COMMISSION
David H. Solomon
Chief, Enforcement Bureau
_________________________
1 Forfeiture Order, DA 00-1428 (Enf. Bur., released June 27,
2000).
2 47 U.S.C. §§ 301 and 303(n).
3 Notice of Apparent Liability for Forfeiture, NAL Acct. No.
X3254-003 (Enf. Bur., Houston Office, released March 3, 2000).
4 47 C.F.R. § 1.113(b).
5 47 U.S.C. § 503(b).
6 47 C.F.R. § 1.80.
7 7 47 U.S.C. § 503(b)(2)(D).
8 See para. 6 infra.
9 47 C.F.R. §§ 0.111, 0.311, 1.80(f)(4).
10 47 U.S.C. § 504(a).
11 See 47 C.F.R. § 1.1914.